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June 14, 2006

Smackdown on Ted Piccolo

Ted Piccolo over at Northwest Republican seems to have zeroed in of late on "the Union Thugs and especially Thuggette Patty Wentz and their dupelicitous [sic] attacks on the taxpayers through shadow organizations like 'Our Oregon.'" What's got his panties in a knot is Wentz's successful attempts to shine a light on the lawbreaking that has heretofore permeated the conservative signature gathering efforts in Oregon.

Piccolo has particularly been gloating about the Oregon Secretary of State's recent rejection of Wentz's official complaint that the Taxpayer Bill of Rights backer, Taxpayer Association of Oregon (TAO), was less-than-truthful in its statements about the effect of the measure. Specifically, the backers are naming their initiative the "Rainy Day Amendment," and claiming it will establish a rainy day fund for Oregon while limiting the growth in the state budget. Their website currently states, "With the Rainy Day Amendment, surplus funds can’t be spent by politicians—they form a rainy day fund for Oregon’s future."

Piccolo, in a blog entry entitled, "Secretary of State Lays Smackdown on Patty," states:

The TAO press release correctly states: "The Secretary of State investigated her claims and quickly determined that McIntire’s statements about creating a rainy day fund were entirely permissible as a plausible effect of the measure. Secretary of State Compliance Specialist Norma Buckno wrote that a rainy day fund could be a natural outcome of the amendment, because it would prohibit the legislature from spending surplus revenues (revenues collected over and above the expenditures allowed by the spending limit each biennium). Those surplus revenues would accumulate and be available to offset revenue shortfalls."

I just received an email from Wentz's group, Our Oregon, today. They explained the Secretary of State's position a bit differently:

Elections official says petition's claim is OK ...AFTER the TABOR campaign changed the way it was talking about the measure. That's a point that gets missed in this headline and silly, silly subhead. Take this headline writer out to the woodshed. Also, the lead of the story is incredibly, well, misleading. Let's rewrite it:

"After the TABOR campaign changed language on its website and literature, the state elections department closed an election law complaint against the chief petitioners for making false statements about the outcome of Initiative Petition 6. A spokeswoman for Our Oregon was well-pleased." The Oregonian. June 7th, 2006.

So what else could I do but call the Secretary of State's office myself? Secretary of State Compliance Specialist Norma Buckno was kind enough to send me the letter she wrote on May 9, 2006 to Kelly Clark, attorney for TAO. I was actually expecting to find some middle ground. What I found, however, was that not only had the TAO conveniently ignored the clear message of the letter, but also it appears to me that Our Oregon is not adequately explaining why their complaint was thrown out.

Here are the key points that came to light after reading Buckno's letter:

1. The Chief Petitioners admit that their initiative "does not specifically address what is to occur with revenue taken in by the State in excess of the biennial spending limit" and "acknowledge that there is no way to tell if the Legislature might send the surplus back to taxpayers, or create an 'official' 'rainy day' fund." In fact, "one of the Chief Petitioners, Don McIntire, stated in his comments that while 'in and of itself, the amendment does not create a ‘rainy day’ fund,' the 'carry over' funds 'could constitute a de facto ‘rainy day’ fund.'" That's a heck of a lot different than the matter-of-fact statement on the official website.

2. After the complaint was filed, the backers of the initiative realized they were in the wrong and made several changes "to the website postings on www.sosoregon.com and www.OregonWatchdog.com in regard to the references to a rainy day fund. For instance, the original sentence, 'The Taxpayer Association of Oregon has carefully crafted a perfect SOS constitutional amendment that seamlessly connects both a spending limit and rainy fund,' is now, 'The Taxpayer Association of Oregon has carefully crafted a perfect SOS constitutional amendment that creates a spending limit and allows for a rainy day fund.' The original sentence, 'The monies above the cap cannot be spent – therefore creating a rainy day fund,' has been changed to 'The monies above the cap cannot be spent – those funds can either be returned to taxpayers or set into a rainy day fund.'"

3. The Secretary of State's decision was made after the backer's statements were changed, and those changes were acknowledged in the SOS's response. Additionally, the SOS stated they supported the efforts to "make changes in the information to clarify this issue" and, as Buckno told me, the Chief Petitioners had been "overstating the legal effect of the measure."

4. Once an initiative petition is certified to the ballot as a measure, the applicable election law changes, and the Secretary of State no longer has jurisdiction to investigate complaints such as the one filed by Our Oregon. The only recourse in such cases is the "appropriate circuit court." In other words, as soon as TAO has turned in sufficient signatures and the measure has been certified for the ballot, Jenny bar the door. They can say whatever they want to, and the only recourse anyone will have is to sue them for damages.

5. False election statements are prosecutable in Oregon courts only if the statements are neither partly true nor a matter of opinion or interpretation. In other words, the Court would have to determine intent of the speaker – read their mind and pass judgment on whether they believed what they had said was true.

My take on this is that the Secretary of State acknowledged Wentz was correct and the initiative proponents were overstating their case, but recognized that the law would not allow them to do anything about it. That is a far cry from a "smackdown." And the fact that TAO changed its wording in response to the complaint shows they, too, realized they were overstating their case.

Posted by Becky at June 14, 2006 10:22 AM